By David Renton

Many of us had hoped that with the publication of the Equality and Human Rights Commission’s report, Labour’s antisemitism crisis would reach a natural end.

That has not happened, because of the suspension of Jeremy Corbyn, which should be opposed. It is worth noting at the outset that the report does not demand, or even justify, that punishment. It is true that the authors criticise the former leadership in a key passage for the “effectiveness” of their response to the problem of anti-Jewish racism. But to say that every time a politician is ineffective they should be expelled from the Party would be ridiculous – it is hard to see how Keir Starmer’s leadership of the party, defensive to the right as he has been, would survive that test.

The treatment of Corbyn threatens to overshadow what is otherwise a careful and reflective, if flawed, document.

What I had hoped from the EHRC was a document which might serve several purposes. First, I wanted to see something which would explain to those people in and around the left who have kept silent in response to the increasing use of antisemitic language that such a response is destructive, and an explanation of why they need to speak out.

Second, I hoped that the document would explain to people on the Labour right that their behaviour during the crisis had also contributed to it. That the Labour Party had been overwhelmed with a huge number of complaints, with a purpose of producing press stories that Labour was tottering under such a weight of complaints that the party must be institutionally racist. And that this dynamic of factional complaint proved destructive when it came to challenging actual prejudice.

Third, I wanted it to explain to the Labour left that we too had factionalised our response to the complaints, holding our hands over our mouths and keeping silent even in response to behaviour which had clearly crossed the line.

The Commission has written a report which follows “EHRC” house style: in plain English, with simple examples. Reading it, you feel a sense of good people trying to be fair.

But, focusing on these three arguments, the EHRC has served none of them well. The first it has tried and failed, the second it ignored. Only the third was properly engaged with and, even then, I fear that the report will do little to change anyone’s minds.

Harassment

One of the report’s most incendiary findings is that Labour acted unlawfully in that representatives of the party carried out acts of anti-Jewish harassment. The problem with the report is that it finds that over a four year period, a Party with half a million members and several thousand elected representatives only carried out two such acts: “We found that the Labour Party, through its agents, committed harassment against its members in relation to Jewish ethnicity in the case of two individuals, Ken Livingstone and Pam Bromley.” [p. 25] Bromley is a councillor in Rossendale whose acts of harassment (according to the ERHC) consisted of saying that allegations of antisemitism were false. As for Livingstone, the EHRC criticises him not for his unpleasant remarks about Hitler supporting Zionism but for something else he said in the same interview, namely that he was wrong to have supported his colleague Naz Shah.

As the report acknowledges (but only ever in passing) we are talking about Labour at a time when hundreds of our online supporters have accused people they disagreed with of being traitors, or in the pay of a foreign power. The EHRC confined its findings of harassment to elected members of the party. To find, in that context, that the Labour Party had committed harassment – but to provide such modest examples of it – is to give an open opportunity to all those people out there who want to minimise Labour’s problem and to say that if we close our eyes the problem will go away.

Factionalism

To understand what the Labour right did wrong in 2015-19, we need to grasp something which the authors of the EHRC acknowledge but never integrate into their report: the damage done by factionalism on both sides.

Many complaints concerned whether a member of the Party had written something ill-phrased or indifferent to other people’s opinions. It was of behaviour which was annoying and intended to hurt. Take the words actually used by Pam Bromley, “Had Jeremy Corbyn and the Labour Party pulled up the drawbridge and nipped the bogus AS [antisemitism] accusations in the bud in the first place we would not be where we are now and the fifth column in the LP [Labour Party] would not have managed to get such a foothold … the Lobby has miscalculated … The witch hunt has created brand new fightback networks … The Lobby will then melt back into its own cesspit” [p. 28].

The authors of the EHRC say that the offence of this comment was that it suggested complains of antisemitism were false. No, the offensiveness of the remark is more than that. Bromley spoke of members of the Labour Party as a “fifth column”, i.e. appealed to ideas of Jews as outsiders, and characterised them as an evil force, emerging from some alien and unwelcome place (a “cesspit”).

For the Labour right, the answer to words such as Bromley’s is “zero-tolerance”. This is a slogan masquerading as a declaration of seriousness. In reality, it is the opposite. It means disclaiming Labour’s responsibility, pushing the problem somewhere else, and leaving the underlying behaviour in place.

The authors of the EHRC do grasp this, speaking of the need for a range of sanctions [p. 40], including training even for those cleared of antisemitism [p. 15].

The appropriate way to investigate a case such as Bromley’s would be with care: to make it clear that expulsion was one of a series of options, to force her to confront the reality of the pain her words cause to other people, and to see if she was capable of the intelligence required to change and moderate her behaviour in future. A fair process would have to include the possibility of “tolerance,” i.e. in borderline cases, allowing someone to remain a member in return for a promise of change.

Investigating such personal complaints properly requires time and resource. The reason why that resource was never forthcoming was that the processes adopted by the Labour Party were extremely time-consuming, and there were simply too many complaints.

One of the things which the EHRC appears to have understood (at least in part) is the role social media has played in increasing the volume of antisemitism. Of the 70 complaints that the Commission studied, 59 concerned social media [p. 11]. In a world where it is possible to join the Labour Party online, to sign up to canvass through a Momentum app, where most political argument takes place online rather than at CLP meetings – the nature of political speech is changing, and we are all still struggling to catch up.

Between 2016 and 2019, a typical investigation would proceed as follows. A complainant would look through the Twitter or Facebook account of someone they believed might be guilty of antisemitism, pass on a screenshot of an unwelcome post; then Labour investigators would repeat the process, often with greater care than the original complainant, digging back into the history of members’ social media use, often over several years. As this spring’s leaked dossier explained: “Many of the suspensions and [notices of investigation] which have been imposed on individuals following complaints from this complainant have actually been a consequence of the additional social media searches [staff in the Governance and Legal Unit] have conducted, which have revealed much more serious evidence of antisemitism than that submitted.”

No court in Britain works like this, in mixing together the roles of complainant and adjudicator. The result has been a Kafkaesque world of shifting complaints, in which the “real” content of a complaint (i.e. its final, most negative form) could not be known till the very end of an investigation and therefore could not be passed on to the person being investigated with any opportunity for them to reply. It has also produced second- or third-wave investigations, where the success of fact-gathering was determined by whether it achieved an intended outcome (expulsion) rather than addressing what someone did wrong and the extent to which they were willing to change.

This is where the Labour right comes in: its relation to the Corbyn crisis was to concentrate on the quantity of complaints not their quality. One MP Margaret Hodge named over 100 people to be investigated, without first checking to see how many were members of the Party (and the answer was – just 20). She was far from the most insistent of complainants. Another individual sent over 2,000 emails to the Labour Party between spring 2018 and spring 2020, with screenshots attached, resulting in the investigation of 451 named individuals, or around one fresh case per day for two years.

Such were the volume of complaints by 2018 that any investigation system would have struggled to administer them fairly – even if every single member of the party’s staff had been temporarily redirected from their existing work in finances or publicity and reallocated to dealing with the backlog, there would not have been enough.

The EHRC report finds that “the complaints process was not properly resourced” [p. 7]. To which anyone who was seriously committed to the fight against antisemitism would surely respond – how could it be sufficiently resourced, when the process of investigating complaints was so drawn-out and new complaints were coming in at that rate?

Leadership

The Leadership Office is criticised by the Commission for repeatedly intervening in cases. At the minimum, this created the impression that the left was protecting its own.

The authors note, “We found evidence of political interference in the handling of antisemitism complaints throughout the period of the investigation. We have concluded that this practice of political interference was unlawful. The evidence shows that staff from the Leader of the Opposition’s Office (LOTO) were able to influence decisions on complaints, especially decisions on whether to suspend” [p. 7] Plainly, there needs to be some reckoning with the role played by senior staff in the leader’s office during the crisis, and the role played by UNITE.

One problem, though, with the Commission’s findings is they explain the wrongs of his behaviour in terms of indirect discrimination. “Jewish members are proportionately more likely than non-Jewish members to make a complaint about antisemitism,” [p. 55] so a process in which the leadership shielded its allies was to Jewish members’ detriment.

There is one obvious flaw with this argument, and one which Corbyn’s supporters were raising at the time. Jews were not only over-represented among the people making complaints; they were also over-represented among those receiving them.

As Seumas Milne wrote, in an email which has been often but wrongly criticised: “if we’re more than very occasionally using disciplinary action against Jewish members for antisemitism, something’s going wrong.”

People will read the Commission’s report, and they will see for themselves that indirect discrimination cannot be used in the way that the authors want – as a stick with which to criticise Labour for failing to investigate Jewish complainers – without it also operating as a shield to protect anti-Zionist Jews from excessive criticism.

The core recommendation of the report is that Labour should have passed on its disciplinary processes to an independent body which could have investigated complaints fairly without subjecting its decisions to the demands of a factional war [p. 12]: I cannot believe that there is anyone in the Labour family who would still disagree with that.

On the other hand, I do not believe anyone on the left will be satisfied with the reasoning which underpins criticism of Corbyn’s leadership. Near the end of the report, the authors write, “It is hard not to conclude that antisemitism within the Labour Party could have been tackled more effectively if the leadership had chosen to do so” [p. 101].

In contrast to many Corbyn supporters, I agree with the EHRC. In 2016-19, the left (as a whole) failed to grasp the rise of antisemitism in wider society or its increasing use by members of the Party, and our collective reaction to the likes of Ken Livingstone of Chris Williamson was one of silence when it should have been outrage. The leadership, in common with the party as a whole, failed to acknowledge the scale of the problem.

But the EHRC’s proof of why the leadership was at fault is seriously awry. To quote the passage as a whole, “The Labour Party has shown an ability to act decisively when it wants to, through the introduction of a bespoke process to deal with sexual harassment complaints. It is hard not to conclude that antisemitism within the Labour Party could have been tackled more effectively if the leadership had chosen to do so.” [p. 101]

It’s bad politics to assume that because Labour has, on paper, a much better policy for dealing with sexual harassment that a similar document would have solved the antisemitism crisis. People who care about sexism know that the left has repeatedly mishandled that issue too (just think of the GMB this year, or the SWP in 2012).

Labour’s handling of the crisis was not caused, ultimately, by the absence of a policy akin to the Party’s documents on sexual harassment (you could call this the Chakrabarty fallacy) but by the unwillingness of most members to admit that the problem of antisemitism was real. This combined with such a volume of complaints that investigators adopted short-hand means of resolving disputes (eg by taking no action against those sharing antisemitic posts, or eg deferring issues of suspensions to the Leader’s Office) which left the underlying behaviour unchallenged.

Therefore, the response of the people who most need to read this report is likely to be that its arguments are unconvincing and there is no need for them to change.

The EHRC report confronts neither the factionalism of the Labour right, nor the left’s blind-spot for antisemitism. Rather it takes what both sides agree on (the desirability of a better process) and puts that before everything else.

From the perspective of changing how people behave and preventing the crisis from repeating itself – the EHRC report is a missed chance.

Corbyn

This takes me back to Jeremy Corbyn’s suspension.

Corbyn has not been punished for anything in the report, but for his response to the report, and for saying that “the scale of the problem was also dramatically overstated for political reasons by our opponents inside and outside the party,”

There is a passage in the EHRC report [at p. 30] where the authors speak of how belittling complaints of antisemitism runs the risk of becoming actual harassment. In the content of Livingstone’s defence of Naz Shah, they write, “the effect of these comments was humiliating, denied the victims’ experience, diminished the issue, and had the effect of stirring up and fuelling hatred for Jews.”

It is possible that for the people who decided to suspend Corbyn similar reasoning applied, that in saying that the scale of the problem had been “overstated” they believed he was causing a hostile environment for Jews. If so, then amongst other things, the people concerned understand pretty poorly how our legal definition of harassment works. For one of the small failings of the EHRC report was that its authors paraphrased only section 26(1) of the Equality Act 2010, the general definition of harassment as behaviour which creates hostile environments for others and not section 26(4) of the same Act.

That sets out that in deciding whether conduct did create that environment, you must consider not just the perception of its victims, but also whether it is objectively reasonable for the conduct to have that effect. Deciding whether conduct was harassment is not simply about whether it offends people, but whether they were right to be offended.

Corbyn did not deny antisemitism, he stated only that its scale had been overstated. That was legitimate political comment. Pretending that all Jewish Labour supporters were upset is to ignore not just the few who are never offended, but a much broad swathe of Jewish opinion for whom this was an honest and arguable response.

Finally, in common with most Jewish people, I am fed up with being the battleground of other people’s cultural wars. I don’t particularly want to be in (“in support of?”) a Labour Party which could countenance an act as stupid as Corbyn’s suspension.

But for everyone ripping up their membership cards, do you really want to be part of something new, whose sole shared experience is resisting allegations of antisemitism?

David Renton is a barrister specialising in housing, employment and anti-discrimination law.

Image:  Jeremy Corbyn on the conference platform, listening to Len McCluskey give a speech, at the 2016 Labour Party Conference in Liverpool. Author: Rwendland,  licensed under the Creative Commons Attribution-Share Alike 4.0 International license.